Martin Partington: Spotlight on the Justice System

In July 2013, the Ministry of Justice issues an interesting press notice, comprising a letter from the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals. Although written in emollient tone, it raises some interesting questions about how the judicial estate – the buildings in which courts and tribunals sit – is to be managed in future.
The letter does not imply that any changes are imminent. But there is clearly a process going on within the MoJ which could result in big change.
The letter makes clear that “The provision of justice is and will remain a core function of the State. The Lord Chancellor is, and will continue to be, responsible by statute for the provision of an efficient and effective system to support the administration of justice. We are all committed to ensuring that vital constitutional safeguards (including access to justice, the rule of law, the independence of the judiciary, and the preservation of the position of the Lord Chief Justice) are maintained.

“There will be no erosion of the constitutional position of courts and tribunals or the constitutional principles which underpin the independent administration of justice.”

Nonetheless, the letter also states: “Our courts are not always where they need to be and not always used to the full. Our buildings do not always offer modern, high quality facilities. Some are not properly accessible to all users. They should be better equipped to enable the business of the courts and tribunals to be conducted more efficiently. A variety of difficult decisions will be required as to the appropriate level at which fees are set and about how best to deliver access to justice and value for money for the taxpayer.”

The inference I draw from this is that the programme of court closures currently being implemented will not be the end of the story.

The authors of the letter are clear that they want more investment in IT – achieved for criminal courts but not universal. Thus, while rejecting the idea of the court service becoming a profit-making body,: “We have been reflecting on whether it would be possible to ensure adequate investment and where consistent with the administration of justice, options to generate and retain additional income and capital for investment.”

The inference I draw from this is that there is a strong likelihood that one of the options for change will be increased fees to be paid by litigants for using the courts and tribunals service – with consequent implications for access to justice.

They also ask “whether an alternative structure, such as a more independent public interest corporation, would better ensure a sustainable future”.

A wider implication that arises is that if access to courts does become increasingly expensive, there is likely to be greater recourse to dispute resolution procedures that fall outside the court system.

To read the letter, go to: https://www.gov.uk/government/news/letter-to-judges

So the Legal Services Commission has finally closed to be replaced by the Legal Aid Agency. At present, little information about the new agency is available. Its website currently sets out its priorities and its senior management team.

Readers will be kept in touch with developments as they arise.

To find the current offering from the agency, visit http://www.justice.gov.uk/about/laa

The third report on the implementation of Law Commission reports was published in January 2013. It makes pretty sorry reading.

It is noted that “the new House of Lords procedure for Law Commission Bills is proving to be effective in implementing uncontroversial changes. The Consumer Insurance (Disclosure and Representations) Act received Royal Assent in March 2012 and the Trusts (Capital and Income) Bill completed its passage through Parliament on 7 January 2013, both of which followed the new procedure.”

But apart from these triumphs, the report also states that while “Considerable progress has been made by the Government in taking forward many of the Law Commission’s recommendations during the reporting period …it has  unfortunately not been possible to complete the implementation of any of the Commission’s reports since the previous report to Parliament.”

The only piece of good news is that the report also states that no Commission reports have been rejected.

The Government’s excuse is that it has to focus on dealing with economic matters, and therefore this reduces the priority for law reform. But this argument does not consider whether there may be economic savings to be made if the law was made more rational. There must surely be a limit to the ability of Governments to praise the quality of Law Commission work, and make so little response to it?

The full report (and it is not long) is at http://www.justice.gov.uk/downloads/publications/corporate-reports/MoJ/law-commission-proposals-report.pdf

One development, not adequately publicised, is the creation of an increasing number of short YouTube videos on different aspects of the justice system. Produced by the Ministry of Justice they provide introductions to many aspects of the justice systems, including information about a number of tribunals where those appearing will struggle to get legal representation.

To browse the videos, go to http://www.youtube.com/user/MinistryofJusticeUK/videos?view=1&flow=grid

Do you get fed up with all those text messages or telephone calls inviting you to claim for an accident you never had or a PPI policy that you never bought?

The Ministry of Justice tries to regulate this seemingly uncontrolled and often unethical sector of the legal services market.
As a cheering end of year news item, the Ministry of Justice website published a press release that reports that between April and November 2012 209 companies were shut down and had their licences removed, three have been suspended and 140 have been warned.

This comes ahead of Government plans next year to give consumers even more protection against rogue firms. This includes making all businesses agree written contracts with customers before taking fees and an independent consumer complaints service which can compensate those who have received a raw deal.

For detail see http://www.justice.gov.uk/news/features/claims-management-crackdown

Under the heading ‘Unclogging the Courts’, on 19 November 2012, the Justice Secretary announced that he planned to introduce changes to judicial review – the legal process available to those wishing to challenge decisions taken by government and other public bodies. The announcement said that there would be a consultation exercise, presumably with a Consultation Paper.

Although promised, no Consultation Paper has yet appeared. Measures stated to be in the Justice Secretary’s sights include:

• Shortening the length of time following an initial decision that an application for a judicial review can be made in some cases – and stopping people from using tactical delays
• Halving the number of opportunities currently available to challenge the refusal of permission for a judicial review, from the current four to two
• Reforming the current fees so that they cover the costs of providing judicial review proceedings.

This is an extremely important announcement which has the potential to do great damage to an important area of law and practice that has developed over the last 50 years.

The Minister of Justice is attempting to sell the argument on the basis that changes will result in swifter justice outcomes; the Prime Minister was at the same time selling the proposed changes as a way to reduce the number of challenges to major economic infrastucture developments, such as the building of new airports and high speed railways.

These ideas will undoubtedly be extremely controversial. Updates will appear here in due course.

To see the original announcement go to http://www.justice.gov.uk/news/press-releases/moj/grayling-unclogging-the-courts-to-bring-swifter-justice

In October, the outgoing director of JUSTICE delivered an extremely thoughtful lecture on how legal services for the poor should develop, following the enormous cuts that will result from the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

In it he argues that there is no point in simply hoping that a future government will restore the cuts now being made; that is not going to happen.

Instead, we have to think much more creatively about how legal advice and support services are delivered – more imaginative use of Information Technologies, for example; and also more more thought about how we may law more understandable – so that people can understand more of their rights and obligations without the need for lawyer interpreters.

My own beef is that recommendations the Law Commission made relating to clarifying the terms and conditions on which landlords and tenants rent property – which affect a third of the population – could have re-engineered this very important and practical area of law, were not taken forward by government. The more general point is that if governments continue to enact protective legislation – which is an important past of their work – it must be done in a way that is meaningful to the people directly affected, not just to the lawyers who will no longer be on hand to assist.

The lecture is extremely stimulating. Not everyone will agree with what it says. But it is worth reading. You can download the text at http://www.justice.org.uk/data/files/resources/332/After-the-Act-what-future-for-legal-aid.pdf

In the book, I talk about some of the problems of knowing how to interpret official statistics on crime. In particular I discuss in outline the differences between Police Recorded Crime Statistics and the British Crime Survey.

In recent months there have been a number of technical changes in the way statistics on crime are published.

1 From April 2012, statistics on crime are published by the Office for National Statistics (ONS), not the Home Office. The opening website is available at http://www.ons.gov.uk/ons/taxonomy/index.html?nscl=Crime+in+England+and+Wales

2 The British Crime Survey is no more. It has been replaced by the somewhat less catchy but more accurate Crime Survey for England and Wales. There is a separate survey of crime in Scotland, called the Scottish Crime and Justice Survey.

3. On 19 July 2012, under the rather inviting title Trends in crime: a short story 2011/12 the ONS has recently a rather helpful table, summarising the principal differences between the Crime Survey for England and Wales and the Criminal Statistics. See http://www.ons.gov.uk/ons/rel/crime-stats/crime-statistics/period-ending-march-2012/trends-in-crime–a-short-story.html

In addition to new rules on judicial appointments (see other blog entry) the Crime and Courts Bill 2012 will, when enacted, deliver other changes to the court system. These include:

• Allowing broadcasting from courtrooms
• Increasing the efficiency of fines by providing incentives for compliance, so offenders bear the cost for delaying payment, not taxpayers
• Creating a Single County Court system and a Single Family Court for England and Wales to allow greater flexibility for the handling of cases
• Allowing data to be shared between the courts, tribunals service and other agencies so fee exemption applications can be checked electronically.

While these may seem somewhat minor issues given the challenges currently facing the government, these changes should make some improvements in how courts function, and thus from this perspective are to be broadly welcomed.